An organization called Medical Justice is encouraging doctors and dentists to …

When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a "mutual privacy agreement" that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka's office manager that ended in me refusing to sign and her showing me the door.

The agreement is based on a template supplied by an organization called Medical Justice, and similar agreements have been popping up in doctors' offices across the country. And although Medical Justice and Dr. Cirka both claim otherwise, it seems pretty obvious that the agreements are designed to help medical professionals censor their patients' reviews.

The legal experts we talked to said that the copyright provisions of these agreements are probably toothless. But the growing use of these agreements is still cause for concern. Patients who sign the agreements may engage in self-censorship in the erroneous belief that the agreements bar them from speaking out. And in any event, the fact that a doctor would try to gag his patients raises serious questions about his judgment.

As we dug into the story, we began to wonder if Medical Justice was taking advantage of medical professionals' lack of sophistication about the law. Doctors and dentists are understandably worried about damage to their reputations from negative reviews, and medical privacy laws do make it tricky for them to respond when their work is unfairly maligned. Although Dr. Cirka declined repeated requests for an interview, his emailed statements (and the statements of his staff) suggest he doesn't understand the terms of the agreement he asks his patients to sign.

In any event, we think censoring patients is the wrong way for doctors to deal with online criticism. Consumers understand that no business satisfies 100 percent of its customers, and the medical profession is no different. If a dentist is worried that negative reviews will harm his reputation, he should respond by providing more information about his practice to prospective patients, and by encouraging his satisfied patients to post positive reviews online. The revelation that he is trying to censor his patients' reviews will do far more damage to his reputation than an occasional negative review ever could.

Just sign here

The agreement that Dr. Cirka's staff asked me to sign on that February morning began by claiming to offer stronger privacy protections than those guaranteed by HIPAA, the 1996 law that governs patient privacy in the United States. In exchange for this extra dollop of privacy, it asked me to "exclusively assign all Intellectual Property rights, including copyrights" to "any written, pictorial, and/or electronic commentary" I might make about Dr. Cirka's services, including on "web pages, blogs, and/or mass correspondence," to Dr. Cirka. It also stipulated that if Dr. Cirka were to sue me due to a breach of the agreement, the loser in the litigation will pay the prevailing party's legal fees.

This seemed fishy to me, so I asked for more information. I had a long conversation with Dr. Cirka's office manager, who insisted that the agreement was not intended to censor the truthful reviews of Dr. Cirka's patients. Rather, she said, it gave Dr. Cirka a tool to remove fraudulent reviews. She said they were especially concerned about non-patients (such as competitors, ex-spouses, or former employees) writing fake reviews to damage Dr. Cirka's business.

She didn't have a good answer when I pointed out that the agreement's text didn't say anything about fraudulent reviews. She also couldn't explain how the agreement could bind non-patients, who by definition will not have signed it.

In fact, she seemed genuinely puzzled by my objections and gave the impression that I was the first person to raise these concerns. But she wouldn't budge on letting me see Dr. Cirka without signing, and she refused to give me a copy of the agreement so I could seek legal advice. Needless to say, I said "no thanks" and am now in the market for a different dentist.

In a written statement, Dr. Cirka acknowledged that the text of the agreement was provided by Medical Justice, and repeated his staff's line that the agreement is focused on fraudulent reviews written by competitors and disgruntled employees. He expressed concern that HIPAA would prevent him from responding properly to negative reviews. And he seemed as stumped as his assistant when I asked him to explain how the agreement could bind people who never signed it. His refusal to talk on the phone made it hard to judge if he really didn't understand this point, or was just pretending not to.

Empty threats?

We can't find any evidence that Medical Justice-style agreements have ever actually been used to censor online reviews. Dr. Cirka told Ars that he has never attempted to remove a fraudulent review using the copyright assignment policy. And Yelp told us that they "have never elected to remove a review in response this type of takedown request." The experts we talked to said they've gotten similar statements from other review sites.

Courts are unlikely to find the agreement to be a valid transfer of copyright.

That's probably because the agreement isn't likely to hold up in court. Ars talked to Wendy Seltzer, a fellow at Princeton's Center for Information Technology who founded the Chilling Effects clearinghouse for copyright takedown notices. She said a medical professional seeking to use the copyright assignment to censor a review would have at least two serious legal problems.

First, courts are unlikely to find the agreement to be a valid transfer of copyright. Blanket, prospective copyright assignments can be valid, but only in certain circumstances. For example, employees can assign any works created on the job to their employer. But online reviews don't fit into any of the usual categories of "works made for hire," and any doctor who claims her patients write reviews on her behalf is likely to be laughed out of court. Second, even if the assignment is valid, courts are likely to find that review sites are entitled to publish them under copyright's fair use doctrine.

Yelp shares Seltzer's assessment, telling Ars that "there are any number of reasons to believe the agreements don't hold water as a legal matter." Yelp spokeswoman Stephanie Ichinose signaled a readiness to fight these agreements, which she says "put the needs of doctors ahead of a patient community that has surprisingly few places to turn for helpful information about the medical profession."

"We are happy to support a patient's right to free speech," Ichinose said.

Seltzer told Ars that a dentist who tried to remove the review of someone who hadn't signed the agreement would face particularly severe problems in court. Under the "notice and takedown" procedure spelled out in the Digital Millennium Copyright Act, the person seeking to have material removed must certify, under penalty of perjury, that he holds the relevant copyrights. But if the author of a review never signed an agreement, then a doctor's claims to hold the copyrights would be a blatant lie, and he would face penalties under the DMCA.

"Completely unethical"

The growing use of censorious copyright assignments recently caught the attention of law professors Jason Schultz and Eric Goldman, who created a site called Doctored Reviews to educate doctors and patients about the phenomenon.

When Ars asked Schultz about medical professionals who ask their patients to sign these agreements, he was scathing. "It's completely unethical for doctors to force their patients to sign away their rights in order to get medical care," he said. He pointed out that patients seeking treatment can be particularly vulnerable to coercion. Patients might be in acute pain or facing a life-threatening illness. Such patients are in no position to haggle over the minutia of copyright law.

And it gets worse. The "mutual privacy agreements" promise not to exploit a loophole in HIPAA that allows doctors to sell patient information for marketing purposes. But Schultz said that loophole was closed several years ago. Which means that recent versions of the Medical Justice agreement (including the one I was asked to sign) are lying to patients when they promise more protections than are offered under federal law. The Medical Justice website still claims that patients are "granted additional privacy protections" under the law, but doesn't elaborate or back up this claim.

Schultz had even harsher words for Medical Justice. The organization repeatedly refused to talk to Ars Technica, and Schultz speculates that this is because they "skewered themselves" in previous statements to the press. And he says that the organization's story keeps changing as they've received more and more bad press. Early versions of the MJ agreement flatly prohibited patients from making public statements about the services they have received. Later, he said, they realized that these explicitly censorious provisions looked bad and removed them. But they reserved the right to block patient reviews using the copyright provisions. Now they're refusing to talk to the press at all, but their clients are claiming, implausibly, that they're focused on censoring non-patients.

"There's this question about whether Medical Justice is deceiving doctors," Schultz said, by selling them a product that won't work as advertised. Not only are review sites unlikely to comply with a takedown request, but attempting to take down reviews could expose doctors themselves to legal liability for abuse of copyright law and possibly for violating anti-SLAPP laws.

"Doctors are busy," Schultz said. "Someone hands them a form and says it will solve their problems" with negative reviews. "They're not lawyers." They might have decided to adopt the form without fully understanding the consequences.

The ham-handed response taken by Medical Justice and its clients may also reflect the fact that doctors and dentists are finding themselves suddenly disoriented in a new, more competitive marketplace. "The Internet is the great equalizer." Schultz told Ars. "Other people have had to deal with harsh reviews for a very long time. And finally, an elite profession is also having to deal with it." It's easy to sympathize with the "emotional trauma" of being unfairly criticized on the Internet, he said. But doctors shouldn't be immune from the kind of public scrutiny that most other professions now face.

I prefer my doctors to be above reproach, which is essentially an easy way of ensuring people dismiss negative claims about you. Failing that, a recommendation from someone I know is always better than one from the internet-at-large.

From my experience working with doctors as a professional: They are smart people; and realize they need to cover their bases, but once they believe that has been done, they really don't give a shit because it doesn't relate to what they do. 99% of the doctors I've met really care about their patients and doing a good job and that's exactly WHY they don't care about the rest of it.

They don't care about your rights as a patient, they care about providing you the best care they deem possible. So they bought a form from a company that indemnifies them against a whole bunch of stuff they really don't care about but feel they need to be indemnified against in order to not lose their shirt.

Also, in my experience, doctors are really smart people who believe their judgment is better than yours. This is almost always the case if it relates to medical matters (after all, that's why you went to see them) but they can be stubborn when it comes to matters outside their realm of expertise. Hate to say, but the best tactic I've found in those situations is to go so far over their head that they throw up their hands in frustration and deicide "I don't have time to deal with this," and you can usually get what you want.

From my experience working with doctors as a professional - only "educators" (read: teachers) are a more whiny, arrogant bunch of assholes as a whole. The minority are the ones with ethics and morals, the majority are a bunch of egotistical, self-righteous jerks who couldn't find their way out of a cardboard box.

I don't argue that there aren't smart doctors out there - but the "smart doctors" don't hesitate to let you know, and keep reminding you, that they think they're smart. Smartasses, more like it.

Perhaps the Canadian healthcare system is different, but since MDs are also in it to "make money", perhaps not.

I'm sorry, but how is someones opinion in writing somehow bound by copyright anyways? What the hell does copyright have to do with you giving your opinion on how a doctors or dentists office visit went? Is what I'm writing right here on ARS copyrighted be me somehow, I've never registered it anywhere? I'm also sure most people that have signed this form have no idea what they've really signed, since apparently the office managers also have no clue what they are asking their patients to sign, just that they have to do it. This sounds like something some lawyer thought up just to create more BS lawsuits and rake in easy cash.

I had a somewhat similar situation with an unenforceable contract and a doctor's office. I had scheduled an appointment for a child, and the doctor's office wanted me to sign a form stating I agreed to mandatory arbitration rather than sue for relief in court. When I didn't sign, the receptionist told me I had to or else the doctor wouldn't see the kid.

At that point, I walked out and met with another doctor. It got to the point the Utah legislature took notice and made those forms optional, meaning the doctor's office could ask you to sign the form, but by refusing the doctor couldn't deny care. I still see that form again and again but at least now I don't have to walk away.

Do you know why doctors started doing this? It's because of retarded ass patients who see a drug commercial on TV, demand that prescription from their doctor, and then give the doctor bad reviews when he refuses. And it's not an equal playing field either, because it's nearly impossible for a doctor to respond to such reviews in a way that does not reveal patient info (i.e. HIPPA).

What does this have anything to do with that? Getting your teeth cleaned isn't a life or death scenario.

No, but the dentist is the one that makes the referrals for other services. I had to see a dentist before I could see an oral surgeon about getting my wisdom teeth taken out. The dentist gave me a list of surgeons in the area and told me that if I was not able to have them taken out they would have erupted facing completely the wrong way and possibly broken my jaw.

The growing abuse of extra agreements of all kinds as a precondition of providing goods or services is a cancer that must be stopped. The example in this article of the abuse of IP law to provide a censorship mechanism is an important one, but this trend is also apparent in software licensing, service agreements for cellphones, agricultural products, and more. Our legal rights as citizens are becoming inoperative because corporations force us to waive them as a condition of doing business.

I know the DMCA has provisions to punish fraudulent claims, but I also severely doubt these have been often enforced. Viacom demonstrably made thousands of clearly fraudulent takedowns on Youtube and faced no penalties at all.

What is wrong with these litigation-happy retards and their get-rich-quick schemes? Do they just sit there and think of ways of how to get money without any sense of consequence? Fuck. The absurdity of the situation Is like the one where those idiots suing app developers for using a part of Apple's SDK.

How is this even legal, and how does this even go under copyright? As the article said, no doctor would ever claim that they had a patient write a review for them. The AMA and whatever organization that doctors use (CoP in Canada, not sure what it is in the US) sure as hell wouldn't like that idea. And yeah, I know doctors don't read shit when they do paperwork. I've dealt with them. Still, are they aware of the consequences of taking copyright of reviews?

TL;DR version: The AMA doesn't do any kind of oath thing. Various schools may or may not require some version of some oath based on the Hippocratic Oath. There's no standard modern HO, but none I can find says anything about pledging to help people who need help.

What is wrong with these litigation-happy retards and their get-rich-quick schemes? Do they just sit there and think of ways of how to get money without any sense of consequence? Fuck. The absurdity of the situation Is like the one where those idiots suing app developers for using a part of Apple's SDK.

How is this even legal, and how does this even go under copyright? As the article said, no doctor would ever claim that they had a patient write a review for them. The AMA and whatever organization that doctors use (CoP in Canada, not sure what it is in the US) sure as hell wouldn't like that idea. And yeah, I know doctors don't read shit when they do paperwork. I've dealt with them. Still, are they aware of the consequences of taking copyright of reviews?

I'm sorry, but how is someones opinion in writing somehow bound by copyright anyways? What the hell does copyright have to do with you giving your opinion on how a doctors or dentists office visit went? Is what I'm writing right here on ARS copyrighted be me somehow, I've never registered it anywhere?

In the US, you don't have to register a copyright; the mere act of creating the work (in this case writing the review itself) is enough, though obviously registration helps with proof issues. In the minds of Medical Justice and the doctors, once they own the copyright, they can demand that the specific review written by the patient be taken down if they wish to.

Quote:

I'm also sure most people that have signed this form have no idea what they've really signed, since apparently the office managers also have no clue what they are asking their patients to sign, just that they have to do it.

True, but that's a hard case to prove in court if it ever came to that. Sucks, but true.

Excellent article and investigation. I have a major problem with this world of unending legality and binding agreements, and yet you can at least conceptualize how all this becomes so commonplace. People are suing anyone and anything that fucking can, and it's a plague. A cancer (as someone above aptly put it). There are definitely times when litigation (even of the class-action variety) is a desirable recourse for punishing a person or corporation in the world of civil law, but the state of affairs we are currently in is untenable. To many fucking lawyers.

I truly despise lawyers. Some of you think doctors are arrogant, but at least they provide our society with highly valuable services. And honestly, most doctors I have met are only arrogant in the way that smart people generally are. Most are megalomaniacs or sociopaths. They worked hard and are reaping the benefits. Lawyers are generally scum, no matter what flavor they come in.

I'm sorry, but how is someones opinion in writing somehow bound by copyright anyways? What the hell does copyright have to do with you giving your opinion on how a doctors or dentists office visit went? Is what I'm writing right here on ARS copyrighted be me somehow, I've never registered it anywhere?

Copyright in the US is automatic, your work is copyrighted the moment you create it. And yes, what you're writing on Ars is copyrighted to you, that's how the law works. Ars' user agreement no doubt includes a provision where you grant them a license to publish your comments as part of agreeing to it, that's how all sites with user content work within the framework of the law (at least in the US).

You get additional protections if you register the copyright, but you don't have to register it for your work to be copyrighted.

The problem here clearly lies with the law. It shouldn't be possible for a doctor to make his patients sign a waiver before he sees them. Many patients, especially first time patients, may be in pain or be afraid. Therefore refusing treatment if you don't sign borders on extortion. In part, this is already acknowledged by the law, making doctor-patient relationship special compared to other business transactions (say, having your car repaired). So, extra provisions should not be necessary and be banned or optional at best. If a doctor thinks the current law does not cover all his bases, he's got a powerful lobby to his disposal to change the law.Several states obviously acknowledged this situation (a poster above mentioned Utah). More should follow. On a side notice: people signing a contract with the doctor is very unusual where there's a solid public health-care system. Doctors usually have a contract with the service provider and have to treat everyone under that care within the law.

Oh, and, this Medial Justice thing looks a lot like a scam to me. Someone should do something about it.

The bit about fraudulent DMCA claims may not be quite right. To ask for a takedown of a negative (allegedly false) review, the doctor can make a two-pronged claim that either

the doctor sees only patients who've signed the form, owns copyright on the subsequent comment, and so makes a DMCA takedown request, or

the comment made by someone who had not seen the doctor, and so should be removed as a false review.

I can't imagine a review site caring enough to pay attention to this argument by exclusion, until it came down to a defamation suit by a doctor. At that point, the site can invoke their safe harbor protections and redirect the suit at the submitter.

I'm sorry, but how is someones opinion in writing somehow bound by copyright anyways? What the hell does copyright have to do with you giving your opinion on how a doctors or dentists office visit went? Is what I'm writing right here on ARS copyrighted be me somehow, I've never registered it anywhere? I'm also sure most people that have signed this form have no idea what they've really signed, since apparently the office managers also have no clue what they are asking their patients to sign, just that they have to do it. This sounds like something some lawyer thought up just to create more BS lawsuits and rake in easy cash.

Yes. You don't have to register a copyright in order to have one. Of course ARS can reuse your automatically copy-written comments as fair use under the DMCA.

I'm no doctor, but I thought that in order to become one, you have to take the hippocratic oath, pledging to help people who need help. It looks like Dr. Cirka is not following up on that.

What does this have anything to do with that? Getting your teeth cleaned isn't a life or death scenario.

AdamM, once again you are being purposefully obtuse. The Hippocratic Oath means that you will give ANY services to ANYONE without taking into account their religion, gender, skin color, etc. If you are not doing that, you are in violation of the HIppocratic oath, which this demand to sign over copyright to reviews before you get treatment (something that is totally unrelated to medical care) is a violation of.

From my experience working with doctors as a professional - only "educators" (read: teachers) are a more whiny, arrogant bunch of assholes as a whole. The minority are the ones with ethics and morals, the majority are a bunch of egotistical, self-righteous jerks who couldn't find their way out of a cardboard box.

I don't argue that there aren't smart doctors out there - but the "smart doctors" don't hesitate to let you know, and keep reminding you, that they think they're smart. Smartasses, more like it.

Perhaps the Canadian healthcare system is different, but since MDs are also in it to "make money", perhaps not.

I am a doctor in the British NHS, and I find your comment arrogant and egotistical, and I'm guessing most other people reading it did too. Doctors are like every other large group of professionals - diverse. To point out that some are whiney and arrogant is like saying, "some people aren't very nice". To tar them all with the same brush is an untenable sweeping generalization.

I can understand why this dentist wanted to control what people say about him - most people know very little about health care, it is impossible to get it right 100% of the time, and just because someone has a complication does not mean that there was anything wrong with their healthcare. No one wants a bunch of ill-informed angry people writing angry reviews that:a) have nothing to do with realityb) are completely unanswerable because of patient confidentiality

That said, it is obvious that the dentist is a victim here too - he is being sold a "service" that isn't worth the paper it's written on, costs money in administration, and he's lost customers because of it. You have to hand it to the lawyers - it was the ultimate sales pitch to get that one over!

Patient feedback is becoming more and more important for the healthcare professions, and in my view it is something we should embrace. Used in the right way, it definitely helps identify issues before they are problems and usually makes you feel pretty damn good about yourself! Used in the wrong way in a private healthcare system it could conceivably damage someone's livelihood while serving no useful purpose. Protecting professionals from that is a worthwhile pursuit, but this is clearly the wrong way to do it.

From my experience working with doctors as a professional - only "educators" (read: teachers) are a more whiny, arrogant bunch of assholes as a whole. The minority are the ones with ethics and morals, the majority are a bunch of egotistical, self-righteous jerks who couldn't find their way out of a cardboard box.

I don't argue that there aren't smart doctors out there - but the "smart doctors" don't hesitate to let you know, and keep reminding you, that they think they're smart. Smartasses, more like it.

Perhaps the Canadian healthcare system is different, but since MDs are also in it to "make money", perhaps not.

I am a doctor in the British NHS, and I find your comment arrogant and egotistical, and I'm guessing most other people reading it did too. Doctors are like every other large group of professionals - diverse. To point out that some are whiney and arrogant is like saying, "some people aren't very nice". To tar them all with the same brush is an untenable sweeping generalization.

I can understand why this dentist wanted to control what people say about him - most people know very little about health care, it is impossible to get it right 100% of the time, and just because someone has a complication does not mean that there was anything wrong with their healthcare. No one wants a bunch of ill-informed angry people writing angry reviews that:a) have nothing to do with realityb) are completely unanswerable because of patient confidentiality

That said, it is obvious that the dentist is a victim here too - he is being sold a "service" that isn't worth the paper it's written on, costs money in administration, and he's lost customers because of it. You have to hand it to the lawyers - it was the ultimate sales pitch to get that one over!

Patient feedback is becoming more and more important for the healthcare professions, and in my view it is something we should embrace. Used in the right way, it definitely helps identify issues before they are problems and usually makes you feel pretty damn good about yourself! Used in the wrong way in a private healthcare system it could conceivably damage someone's livelihood while serving no useful purpose. Protecting professionals from that is a worthwhile pursuit, but this is clearly the wrong way to do it.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.